**Exhibit99.20**

 
| **Notice of Grant Award  And Award Agreement** | ** ** | **Avocent  Corporation**ID: 9120323684991 Corporate DriveHuntsville, AL 35805 |
|------------------------------------------------|------------|-------------------------------------------------------------------------------|

 

 
| Name:    |   | Award Number: |
|----------|--------|---------------|
|     |   |          |
| Address: |   | Plan:         |
|     |   |          |
|     |   | ID:           |

 

Effective                                   ,you have been granted an award of                             restricted stock units.  These units arerestricted until the vest date(s) shown below, at which time you willreceive shares of Avocent Corporation (the Company) common stock.

 

Thecurrent total value of the award is $                            .

 

Theaward will vest in increments on the date(s) shown.

 
| **Shares** | ** ** | **Full Vest** | ** ** |
|------------|------------|--------------------|------------|
|       |       |               |       |
|       |       |               |       |
|       |       |               |       |

 

By your signature and the Company’s signature below, you and theCompany agree that this award is granted under and governed by the terms andconditions of the Company’s Award Plan, as amended, and the Award Agreement,all of which are attached and made a part of this document.

 
|                |   |   |   |
|---------------------|--------|--------|--------|
| Avocent Corporation |   |   | Date   |
|                |   |   |   |
|                |   |   |   |
| Name                |   |   | Date   |

 

1

----

 

**AVOCENT CORPORATION**

 

**2005 EQUITY INCENTIVE PLAN**

 

**NOTICE OF GRANT OF RESTRICTEDSTOCK UNITS**

 

Unless otherwise definedherein, the terms defined in the Plan shall have the same defined meanings inthis Notice of Grant of Restricted Stock Units.

 

You have been granted thenumber of Restricted Stock Units set forth on the Notice of Grant of Award andAward Agreement (the “Cover Page”) to which this Notice of Grant of RestrictedStock Units is attached.  Each such Unitis equivalent to one Share of Common Stock of the Company for purposes ofdetermining the number of Shares subject to this Award.  None of the Restricted Stock Units will beissued (nor will you have the rights of a stockholder with respect to the underlyingshares) until the vesting conditions described below are satisfied.  Additional terms of this grant are asfollows:

 

**TheVesting Schedule for your Award is set forth on the Cover Page, and                 (              %)of the Restricted Stock Units awarded to you shall vest on [INSERT VESTINGSCHEDULE] provided you are an Employee of (or other Service Provider to) theCompany or any of its Subsidiaries on each such date.  [*For the Company’s SeniorOfficers: *Notwithstanding theforegoing, all Restricted Stock Units awarded to you shall be deemed andtreated as fully earned and the vesting of all such Restricted Stock Unitsshall be deemed and treated as fully accelerated on the same terms andconditions that the vesting of any equity awards granted to you is (or isrequired to be) accelerated under the terms of any agreement (including theEmployment and Noncompetition Agreement between you and the Company or any ofits Subsidiaries or any other agreement between you and the Company or any ofits Subsidiaries).][*For the Company’s IndependentDirectors: *Notwithstandingthe foregoing, all Restricted Stock Units awarded to you shall be deemed andtreated as fully earned and the vesting of all such Restricted Stock Unitsshall be deemed and treated as fully accelerated upon a Change in Control (asdefined in Section 24 of the Restricted Stock Unit Agreement attachedhereto as Exhibit A).]**

 

You acknowledge and agree that this agreement and thevesting schedule set forth herein does not constitute an express or impliedpromise of continued engagement as a Service Provider for the vesting period,for any period, or at all, and shall not interfere with your right or theCompany’s right to terminate your relationship as a Service Provider at anytime, with or without cause.

 

You hereby agree to accept as binding, conclusive andfinal all decisions or interpretations of the Administrator upon any questionsrelating to the Plan and this Award.

 

By your signature and thesignature of the Company’s representative on the Cover Page, you and the Companyagree that the Cover Page, this Notice of Grant of Restricted Stock Units, theform of Restricted Stock Unit Agreement attached as Exhibit A hereto, andthe 2005 Equity Incentive Plan constitute your entire agreement with respect to thisAward and may not be modified adversely to your interest except by means of awriting signed by the Company and you.

 

2

----

 

EXHIBIT A

 

**AVOCENTCORPORATION**

 

**2005 EQUITY INCENTIVE PLAN**

 

**RESTRICTED STOCK UNIT AGREEMENT**

 

1.             Grant.  The Company hereby grants to you an award of Restricted Stock Units (“RSUs”), asset forth in the Notice of Grant of Restricted Stock Units and subject to theterms and conditions in this Agreement and the Company’s 2005 Equity IncentivePlan (the “Plan”).  Unless otherwisedefined herein, the terms defined in the Plan shall have the same definedmeanings in this Restricted Stock Unit Agreement.

 

2.             Company’s Obligation.  Each RSU represents the right to receive aShare on the vesting date (or at such later time indicated in thisAgreement).  Unless and until the RSUsvest in the manner set forth in paragraph 3 or Section 19 of the Plan, youwill have no right to receive Shares under such RSUs.  Prior to actual distribution of Sharespursuant to any vested RSUs, such RSUs will represent an unsecured obligationof the Company, payable (if at all) only from the general assets of theCompany.

 

3.             Vesting Schedule andIssuance of Shares.

 

(a)           Subject to paragraphs 4 and11, and Section 19 of the Plan, the RSUs awarded by this Agreement willvest as to the number of RSUs, and on the dates shown, on the Notice of Grant(each a “Vesting Date”), [*For the Company’s SeniorOfficers: *In addition, theRSUs awarded under this Agreement be deemed and treated as fully accelerated tothe same extent and on the same terms and conditions that the vesting of anyequity awards granted to you is (or is required to be) accelerated under theterms of any agreement (including the Employment and Noncompetition Agreementbetween you and the Company or any of its Subsidiaries or any other agreementor amendment between you and the Company or any of its Subsidiaries),][*For the Company’s Independent Directors: *In addition, the RSUs awardedunder this Agreement shall be deemed and treated as fully earned and thevesting of all such Restricted Stock Units shall be deemed and treated as fullyaccelerated upon a Change in Control (as defined in Section 24 of thisAgreement),] but only if you will have been continuously a Service Provider fromthe date the RSUs awarded by this Agreement were granted until the date suchvesting occurs.  If you are not a ServiceProvider on such date(s), the Award shall terminate, as set forth in paragraph4.

 

(b)           As soon as practical upon orfollowing each Vesting Date (but, except as provided in this Agreement, in noevent later than the later of (i) the end of the calendar year thatincludes the applicable Vesting Date or (ii) two and one-half (21⁄2) monthsfollowing the applicable Vesting Date, subject to any six (6) month delayrequired by paragraph 8), one Share shall be issued for each RSU that vests onsuch Vesting Date, subject to the terms and provisions of the Plan and thisAgreement.

 

(c)           (i)   If theAdministrator, in its discretion, accelerates the vesting of the balance, orsome lesser portion of the balance, of the Award, the payment of suchaccelerated portion of the Award shall be made as soon as practicable after thenew vesting date, but, except as provided in this Agreement, in no event laterthan two and one-half (21⁄2) months following the end of the Company’s taxableyear in which the applicable Vesting Date occurs; provided, however, if theAward is “deferred 

 

3

----

 

compensation” within the meaning of Section 409A,the payment of such accelerated portion of the Award nevertheless shall be madeat the same time or times as if such Award had vested in accordance with thevesting schedule set forth in paragraph 3(a), including any necessaryapplication of paragraph 8 (whether or not you remain employed by the Companyor a Parent or Subsidiary of the Company as of such date(s)), unless an earlierpayment date, in the judgment of the Administrator, would not cause you toincur an additionaltax under Section 409A, in which case, payment of such accelerated Awardshall be made within two and one-half (21⁄2) months following the earliestpermissible payment date that would not cause you to incur an additional taxunder Section 409A, subject to paragraph 8 with respect to specifiedemployees.  Notwithstanding theforegoing, any delay in payment pursuant to this paragraph 3(c) will ceaseupon your death and such payment will be made as soon as practicable after thedate of your death.  For purposes of thisAgreement, “Section 409A” means Section 409A of the Internal RevenueCode of 1986, as amended, and any proposed, temporary or final TreasuryRegulations and Internal Revenue Service guidance thereunder, as each may beamended from time to time.

 

(ii)   If thevesting of all or a portion of this Award accelerates pursuant to (a) Section 19(c) ofthe Plan in the event of a Change of Control that is not a “change in control”within the meaning of Section 409A, or (b) pursuant to any other planor agreement that provides for acceleration in the event of a Change of Controlthat is not a “change in control” within the meaning of Section 409A, thenthe payment of such accelerated portion of the Award (including any new oradditional Awards existing as a result of paragraph 11 of this Agreement) willbe made in accordance with the timing of payment rules that apply todiscretionary accelerations under paragraph 3(c)(i).  If the vesting of all or a portion of thisAward accelerates in the event of a Change of Control that is a “change incontrol” within the meaning of Section 409A, then the payment of suchaccelerated portion of the Award (including any new or additional Awardsexisting as a result of paragraph 11 of this Agreement) will be made within twoand one-half (21⁄2) months of the Change of Control event.

 

(d)           No fractional Shares shallbe issued under this Agreement.

 

4.             Forfeiture upon Terminationas Service Provider.  Except asprovided in paragraph 3, if you terminate service as a Service Provider for anyor no reason prior to vesting, the unvested RSUs awarded by this Agreement willthereupon be forfeited and automatically transferred to and reacquired by theCompany at no cost to the Company and your right to acquire any Shareshereunder will immediately terminate.

 

5.             Payments after Death.  Any distribution or delivery to be made toyou under this Agreement will, if you are then deceased, be made to theadministrator or executor of your estate. Any such administrator or executor must furnish the Company with (a) writtennotice of his or her status as transferee, and (b) evidence satisfactoryto the Company to establish the validity of the transfer and compliance withany laws or regulations pertaining to said transfer.

 

6.             Withholding of Taxes.  The Company (or the employing Parent orSubsidiary) will withhold from the number of Shares otherwise issuable underthis Award a number of Shares that have an aggregative market value sufficientto pay the minimum statutorily required federal, state and local tax withholdingobligations, unless the Company, in its sole discretion, requires you to makealternate arrangements satisfactory to the Company for such withholdings inadvance of the arising of any withholding obligations.  Shares will be valued at their Fair Market Valuewhen the taxable event occurs.  Thenumber of Shares withheld pursuant to this paragraph 6 will be rounded up tothe nearest whole Share, with no refund provided for any value of the Shareswithheld in excess of the tax 

 

4

----

 

obligationas a result of such rounding, all pursuant to such procedures as theAdministrator may specify from time to time.

 

Notwithstanding any contraryprovision of this Agreement, no Shares will be issued unless and until income, employmentand other taxes which the Company determines must be withheld or collected withrespect to such Shares have been withheld or collected.  In addition and to the maximum extentpermitted by law, the Company (or the employing Parent or Subsidiary) has theright to retain without notice from salary or other amounts payable to you,cash having a sufficient value to satisfy any tax withholding obligations thatthe Company determines cannot be satisfied through the withholding of otherwisedeliverable Shares.  All income and othertaxes related to the RSUs and any Shares delivered in payment thereof are yourresponsibility.

 

7.             Rights as Stockholder.  Neither you nor any person claiming under orthrough you will have any of the rights or privileges of a stockholder of theCompany in respect of any Shares deliverable hereunder unless and untilcertificates representing such Shares will have been issued, recorded on therecords of the Company or its transfer agents or registrars, and delivered toyou or your broker.

 

8.             Code Section 409A.  Notwithstanding anything in the Plan or thisAgreement to the contrary, if the vesting of the balance, or some lesserportion of the balance, of the RSUs is accelerated in connection with yourtermination as a Service Provider, such accelerated RSUs will not be payableuntil and unless you have a “separation from service” within the meaning of Section 409A.  Further, and notwithstanding anything in thePlan or this Agreement to the contrary, if any such accelerated RSUs wouldotherwise become payable upon a “separation from service” within the meaning ofSection 409A, and if (x) you are a “specified employee” within themeaning of Section 409A at the time of such “separation from service”within the meaning of Section 409A (other than due to your death) and (y) thepayment of all or a portion of such accelerated RSUs would result in theimposition of additional tax under Section 409A if paid to you on orwithin the six (6) month period following your “separation from service”within the meaning of Section 409A, then the payment of the portion ofsuch accelerated RSUs that would result in the additional tax imposition willnot be made until the date six (6) months and one (1) day followingthe date of your “separation from service” within the meaning of Section 409A,unless you die following your termination as a Service Provider, in which casethe RSUs will be paid in Shares to your estate as soon as practicable followingyour death (and in all cases within ninety (90) days of your death).  It is the intent of this Agreement to complywith the requirements of Section 409A so that none of the RSUs providedunder this Agreement or Shares issuable thereunder will be subject to theadditional tax imposed under Section 409A, and any ambiguities herein willbe interpreted to so comply.

 

9.             *[For the Company’s Employees:** ***No Effect onEmployment.  Youremployment with the Company and its Subsidiaries is on an at-will basisonly.  Accordingly, the terms of youremployment with the Company and its Subsidiaries will be determined from timeto time by the Company or the Subsidiary employing you (as the case may be),and the Company or the Subsidiary will have the right, which is herebyexpressly reserved, to terminate or change the terms of your employment at anytime for any reason whatsoever, with or without good cause or notice.][*For the Company’s Independent Directors:*  Intentionally Omitted.]

 

10.           Address for Notices.  Any notice to be given to the Company underthe terms of this Agreement will be addressed to the Company at 4991 Corporate Drive, Huntsville, AL 35805, Attn:Stock Administration, or at such other address as the Company may hereafterdesignate in writing or 

 

5

----

 

electronically.

 

11.           Changes in RSUs.  In the event that as a result of a stock orextraordinary cash dividend, stock split, distribution, reclassification,recapitalization, combination of Shares or the adjustment in capital stock ofthe Company or otherwise, or as a result of a merger, consolidation, spin-offor other corporate transaction or event, the RSUs will be increased, reduced orotherwise affected, and by virtue of any such event you will in your capacityas owner of unvested RSUs which have been awarded to you (the “Prior RSUs”) beentitled to new or additional or different shares of stock, cash or othersecurities or property (other than rights or warrants to purchase securities);such new or additional or different shares, cash or securities or property willthereupon be considered to be unvested RSUs and will be subject to all of theconditions and restrictions that were applicable to the Prior RSUs pursuant tothis Agreement and the Plan.  If youreceive rights or warrants with respect to any Prior RSUs, such rights orwarrants may be held or exercised by you, provided that until such exercise anysuch rights or warrants and after such exercise any shares or other securitiesacquired by the exercise of such rights or warrants will be considered to beunvested RSUs and will be subject to all of the conditions and restrictionswhich were applicable to the Prior RSUs pursuant to the Plan and thisAgreement.  The Administrator in itsabsolute discretion at any time may accelerate the vesting of all or anyportion of such new or additional shares of stock, cash or securities, rightsor warrants to purchase securities or shares or other securities acquired bythe exercise of such rights or warrants; provided, however, that the payment ofsuch accelerated new or additional awards shall be made in accordance with thetiming of payment rules under paragraph 3(c)(i).

 

12.           Grant is Not Transferable.  Except to the limited extent provided inparagraph 5, this grant and the rights and privileges conferred herebywill not be transferred, assigned, pledged or hypothecated in any way (whetherby operation of law or otherwise) and will not be subject to sale underexecution, attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwisedispose of this grant, or any right or privilege conferred hereby, or upon anyattempted sale under any execution, attachment or similar process, this grantand the rights and privileges conferred hereby immediately will become null andvoid.

 

13.           Binding Agreement.  Subject to the limitation on thetransferability of this grant contained herein, this Agreement will be bindingupon and inure to the benefit of the heirs, legatees, legal representatives,successors and assigns of the parties hereto.

 

14.           Restrictions on Sale ofSecurities.  The Sharesissued as payment for vested RSUs under this Agreement will be registered underU.S. federal securities laws and will be freely tradable upon receipt. However,your subsequent sale of the Shares may be subject to any market blackout-periodthat may be imposed by the Company and must comply with the Company’s insidertrading policies, and any other applicable securities laws.

 

15.           Additional Conditions toIssuance of Stock.  If at anytime the Company will determine, in its discretion, that the listing,registration or qualification of the Shares upon any securities exchange orunder any state or federal law, or the consent or approval of any governmentalregulatory authority is necessary or desirable as a condition to the issuanceof Shares to you (or your estate), such issuance will not occur unless anduntil such listing, registration, qualification, consent or approval will havebeen effected or obtained free of any conditions not acceptable to the Company.  The Company will make all reasonable effortsto meet the requirements of any such state or federal law or securitiesexchange and to obtain any such consent or approval of any such governmentalauthority.

 

6

----

 

16.           Plan Governs.  This Agreement and the Notice of Grant aresubject to all terms and provisions of the Plan.  In the event of a conflict between one ormore provisions of this Agreement or the Notice of Grant and one or moreprovisions of the Plan, the provisions of the Plan will govern.

 

17.           Administrator Authority.  The Administrator will have the power tointerpret the Plan and this Agreement and to adopt such rules for theadministration, interpretation and application of the Plan as are consistenttherewith and to interpret or revoke any such rules (including, but notlimited to, the determination of whether or not any RSUs have vested).  All actions taken and all interpretations anddeterminations made by the Administrator in good faith will be final and bindingupon you, the Company and all other interested persons.  No member of the Administrator will bepersonally liable for any action, determination or interpretation made in goodfaith with respect to the Plan or this Agreement.

 

18.           Stock Ownership Guidelines.  You understand and acknowledge that thisAgreement and the right to receive Shares under this RSU Award are subject tothe terms and conditions of the Avocent Corporation Restricted Stock,Performance Shares, and Stock Ownership General Guidelines as in effect fromtime to time and as construed by the Administrator.

 

19.           Captions.  Captions provided herein are for convenienceonly and are not to serve as a basis for interpretation and construction ofthis Agreement.

 

20.           Agreement Severable.  In the event that any provision of thisAgreement becomes or is declared by a court of competent jurisdiction to beillegal, unenforceable or void, this Agreement will continue in full force andeffect.

 

21.           Modifications to theAgreement.  ThisAgreement constitutes the entire understanding of the parties on the subjectscovered.  You expressly warrants that youare not accepting this Agreement in reliance on any promises, representations,or inducements other than those contained herein.  Modifications to this Agreement or the Plancan be made only in an express written contract executed by a duly authorizedofficer of the Company.  Notwithstandinganything to the contrary in the Plan or this Agreement, the Company may amendthis Agreement as necessary to comply with Section 409A or to otherwiseavoid imposition of any additional tax or income recognition under Section 409Ain connection to this Award of RSUs.

 

22.           Amendment, Suspension orTermination of the Plan.  Byaccepting this Award, you expressly warrants that you have received an Award ofRSUs under the Plan, and has received, read and understood a description of thePlan.  You understand that the Plan isdiscretionary in nature and may be amended, suspended or terminated by theCompany at any time.

 

23.           Governing Law.  This Agreement shall be governed by the lawsof the State of Alabama without giving effect to the conflict of law principlesthereof.  For purposes of litigating anydispute that arises under this Award of RSUs or this Agreement, the partieshereby submit to and consent to the jurisdiction of the State of Alabama, andagree that such litigation shall be conducted in the courts of Madison County,Alabama, or the federal courts for the United States for the Northern Districtof Alabama, and no other courts, where this Award of RSUs is made and/or to beperformed.

 

24.           [*For theCompany’s Independent Directors: *Changein Control.  “Change in Control”shall mean, after the date of this Agreement, any one of the following events:

 

(a)           Any person (otherthan the Company) or more than one person acting as a group (a “Person”)acquires beneficial ownership of the Company’s securities and is or therebybecomes 

 

7

----

 

when such ownership is combined with stock held by such Person abeneficial owner of securities entitling such Person to exercise twenty-fivepercent (25%) or more of the combined voting power of the Company’s thenoutstanding stock.  For purposes of thisAgreement, “beneficial ownership” shall be determined in accordance withRegulation 13D under the Securities Exchange Act of 1934, or any similarsuccessor regulation or rule; and the term “Person” shall include any naturalperson, corporation, partnership, trust, or association, or any group orcombination thereof, whose ownership of the Company’s securities would berequired to be reported under such Regulation 13D, or any similarsuccessor regulation or rule.

 

(b)           Within anytwenty-four (24) month period, the individuals who were Directors of theCompany at the beginning of any such period, together with any other Directorsfirst elected as directors of the Company pursuant to nominations approved orratified by at least two-thirds (2/3) of the Directors in office immediatelyprior to any such election, cease to constitute a majority of the Board ofDirectors of the Company.

 

(c)           The closing ofany transaction involving:

 

(i)            anyconsolidation, merger, or other reorganization of the Company in which theCompany is not the continuing or surviving corporation or pursuant to whichshares of the Company’s common stock would be converted into cash, securitiesor other property, other than a merger, consolidation, or other reorganizationof the Company in which the holders of the Company’s common stock immediatelyprior to the merger or consolidation have substantially the same proportionateownership and voting control of the surviving corporation immediately after themerger or consolidation; or

 

(ii)           any sale,lease, exchange, liquidation or other transfer (in one transaction or a seriesof transactions) of all or substantially all of the assets of the Company.

 

Notwithstanding the foregoing, the term “Changein Control” shall not include a consolidation, merger, or other reorganizationif upon consummation of such transaction all of the outstanding voting stock ofthe Company is owned, directly or indirectly, by a holding company, and theholders of the Company’s common stock immediately prior to the transaction havesubstantially the same proportionate ownership and voting control of suchholding company after such transaction.]

 

8

----

 

**AVOCENT CORPORATION**

 

**2005 EQUITY INCENTIVE PLAN**

 

**NOTICE OF GRANT OF PERFORMANCE SHARES**

 

Unlessotherwise defined herein, the terms defined in the Plan shall have the samedefined meanings in this Notice of Grant.

 

**Name:**

 

Youhave been granted                   Performance Shares.  Each such Share isequivalent to one Share of Common Stock of the Company for purposes ofdetermining the number of Shares subject to this award.  None of the Performance Shares will be earnedor issued to you (nor will you have the rights of a stockholder with respect tothe underlying shares) until the vesting conditions described below aresatisfied.  Additional terms of thisgrant are as follows:

 

Dateof Grant:

 

VestingSchedule:  The PerformanceShare award to you specified above will be earned as follows: 

 

[INSERT VESTING SCHEDULE]

 

[*For theCompany’s Senior Officers: *Notwithstandingthe foregoing, and even if the financial or other performance of the Companyfor            has not thenbeen determined, all Performance Shares awarded to you shall be deemed andtreated as fully earned at the maximum level and the vesting of all suchPerformance Shares shall be deemed and treated as fully accelerated on the sameterms and conditions that the vesting of any equity awards granted to you is(or is required to be) accelerated under the terms of any agreement (includingthe Employment and Noncompetition Agreement between you and the Company or anyof its Subsidiaries or any other agreement between you and the Company or anyof its Subsidiaries).]

 

You acknowledge and agreethat this agreement and the vesting schedule set forth herein does notconstitute an express or implied promise of continued engagement as a ServiceProvider for the vesting period, for any period, or at all, and shall notinterfere with your right or the Company’s right to terminate your relationshipas a Service Provider at any time, with or without cause.

 

You hereby agree toaccept as binding, conclusive and final all decisions or interpretations of theAdministrator upon any questions relating to the Plan and this Award.

 

Byyour signature and the signature of the Company’s representative below, you andthe Company agree that this Notice of Grant, the form of Performance ShareAgreement attached as Exhibit A hereto and the 2005 Equity Incentive Plan constitute your entire agreement withrespect to this Award and may not be modified adversely to your interest exceptby means of a writing signed by the Company and you.

 
| GRANTEE:   |   | AVOCENT CORPORATION |
|------------|--------|---------------------|
|       |   |                |
|       |   |                |
| Signature  |   | By                  |
|       |   |                |
|       |   |                |
| Print Name |   | Title               |

 

1

----

 

EXHIBIT A

 

**AVOCENT CORPORATION**

 

**2005 EQUITY INCENTIVE PLAN**

 

**PERFORMANCE SHARE AGREEMENT**

 

1.             Grant.  The Company hereby grants to the Employee anaward of Performance Shares, asset forth in the Notice of Grant of Performance Shares and subject to the termsand conditions in this Agreement and the Company’s 2005 Equity Incentive Plan(the “Plan”).  Unless otherwise definedherein, the terms defined in the Plan shall have the same defined meanings inthis Performance Share Agreement.

 

2.             Company’s Obligation.  Each Performance Share represents the rightto receive a Share on the vesting date (or at such later time indicated in thisAgreement).  Unless and until the PerformanceShares vest in the manner set forth in paragraph 3 or Section 19 of thePlan, the Employee will have no right to receive Shares under such PerformanceShare.  Prior to actual distribution ofShares pursuant to any vested Performance Shares, such Performance Shares willrepresent an unsecured obligation of the Company, payable (if at all) only fromthe general assets of the Company.

 

3.             Vesting Schedule andIssuance of Shares.

 

(a)           Subject toparagraphs 4 and 11, and Section 19 of the Plan, the Performance Sharesawarded by this Agreement will vest as to the number of Shares, and on thedates shown, on the Notice of Grant (each a “Vesting Date”), [*For the Company’s SeniorOfficers: *In addition,and even if the financial or other performance of the Company for           has not then been determined, the Performance Shares awarded under thisAgreement will be deemed and treated as fully earned at the maximum level andthe vesting of all such Performance Shares shall be deemed and treated as fully accelerated onthe same terms and conditions that the vesting of any equity awards granted toyou is (or is required to be) accelerated under the terms of any agreement(including the Employment and Noncompetition Agreement between you and theCompany or any of its Subsidiaries or any other agreement between you and theCompany or any of its Subsidiaries),] but only if you will have beencontinuously a Service Provider from the date the RSUs awarded by thisAgreement were granted until the date such vesting occurs.  If the Employee is not a Service Provider onsuch date(s), the Award shall terminate, as set forth in paragraph 4.

 

(b)           As soon aspractical upon or following each Vesting Date (but, except as provided in thisAgreement, in no event later than the later of (i) the end of the calendaryear that includes the applicable Vesting Date or (ii) two and one-half(21⁄2) months following the applicable Vesting Date, subject to any six (6) monthdelay required by paragraph 8), one Share shall be issued for each PerformanceShare that vests on such Vesting Date, subject to the terms and provisions ofthe Plan and this Agreement.

 

(c)           (i)  If the Administrator, in its discretion,accelerates the vesting of the balance, or some lesser portion of the balance,of the Award, the payment of such accelerated portion of the Award shall bemade as soon as practicable after the new vesting date, but, except as providedin this Agreement, in no event later than two and one-half (21⁄2) monthsfollowing the end of the Company’s taxable year in which the applicable VestingDate occurs; provided, however, if the Award is “deferred compensation” withinthe meaning of Section 409A, the payment of such accelerated portion ofthe 

 

2

----

 

Award neverthelessshall be made at the same time or times as if such Award had vested inaccordance with the vesting schedule set forth in paragraph 3(a), including anynecessary application of paragraph 8 (whether or not the Employee remainsemployed by the Company or a Parent or Subsidiary of the Company as of suchdate(s)), unless an earlier payment date, in the judgment of the Administrator,would not cause the Employee to incur an additionaltax under Section 409A, in which case, payment of such accelerated Awardshall be made within two and one-half (21⁄2) months following the earliestpermissible payment date that would not cause the Employee to incur anadditional tax under Section 409A, subject to paragraph 8 with respect tospecified employees.  Notwithstanding theforegoing, any delay in payment pursuant to this paragraph 3(c) will ceaseupon the Employee’s death and such payment will be made as soon as practicableafter the date of Employee’s death.  Forpurposes of this Agreement, “Section 409A” means Section 409A of theInternal Revenue Code of 1986, as amended, and any proposed, temporary or finalTreasury Regulations and Internal Revenue Service guidance thereunder, as eachmay be amended from time to time.

 

                (ii)  If the vesting of all or aportion of this Award accelerates pursuant to (a) Section 19(c) ofthe Plan in the event of a Change of Control that is not a “change in control”within the meaning of Section 409A, or (b) pursuant to any other planor agreement that provides for acceleration in the event of a Change of Controlthat is not a “change in control” within the meaning of Section 409A, thenthe payment of such accelerated portion of the Award (including any new oradditional Awards existing as a result of paragraph 11 of this Agreement) willbe made in accordance with the timing of payment rules that apply todiscretionary accelerations under paragraph 3(c)(i).  If the vesting of all or a portion of thisAward accelerates in the event of a Change of Control that is a “change incontrol” within the meaning of Section 409A, then the payment of suchaccelerated portion of the Award (including any new or additional Awardsexisting as a result of paragraph 11 of this Agreement) will be made within twoand one-half (21⁄2) months of the Change of Control event.

 

(d)           No fractional Shares shall be issued under thisAgreement.

 

4.             Forfeiture upon Terminationas Service Provider.  Except asset forth in paragraph 3, if the Employee terminates service as a ServiceProvider for any or no reason prior to vesting, the unearned or unvestedPerformance Shares awarded by this Agreement will thereupon be forfeited andautomatically transferred to and reacquired by the Company at no cost to theCompany and the Employee’s right to acquire any Shares hereunder will immediatelyterminate.

 

5.             Payments after Death.  Any distribution or delivery to be made tothe Employee under this Agreement will, if the Employee is then deceased, bemade to the administrator or executor of the Employee’s estate.  Any such administrator or executor mustfurnish the Company with (a) written notice of his or her status astransferee, and (b) evidence satisfactory to the Company to establish thevalidity of the transfer and compliance with any laws or regulations pertainingto said transfer.

 

6.             Withholding of Taxes.  The Company(or the employing Parent or Subsidiary) will withhold from the number of Sharesotherwise issuable under this Award a number of Shares that have an aggregativemarket value sufficient to pay the minimum statutorily required federal, stateand local tax withholding obligations, unless the Company, in its solediscretion, requires the Employee to make alternate arrangements satisfactoryto the Company for such withholdings in advance of the arising of anywithholding obligations.  Shares will bevalued at their Fair Market Value when the taxable event occurs.  The number of Shares withheld pursuant tothis paragraph 6 will be rounded up to the nearest whole Share, with no refundprovided for any value of the Shares withheld in excess of the tax obligationas a result of such rounding, all pursuant to such procedures as theAdministrator may specify from time to time.

 

3

----

 

Notwithstanding anycontrary provision of this Agreement, no Shares will be issued unless and untilincome, employment and other taxes which the Company determines must bewithheld or collected with respect to such Shares have been withheld orcollected.  In addition and to themaximum extent permitted by law, the Company (or the employing Parent orSubsidiary) has the right to retain without notice from salary or other amountspayable to the Employee, cash having a sufficient value to satisfy any taxwithholding obligations that the Company determines cannot be satisfied throughthe withholding of otherwise deliverable Shares.  All income and other taxes related to thePerformance Shares and any Shares delivered in payment thereof are the soleresponsibility of the Employee.

 

7.             Rights asStockholder.  Neither theEmployee nor any person claiming under or through the Employee will have any ofthe rights or privileges of a stockholder of the Company in respect of anyShares deliverable hereunder unless and until certificates representing suchShares will have been issued, recorded on the records of the Company or itstransfer agents or registrars, and delivered to the Employee or Employee’sbroker.

 

8.             Code Section 409A. Notwithstanding anything in the Plan or this Agreement to the contrary,if the vesting of the balance, or some lesser portion of the balance, of thePerformance Shares is accelerated in connection with the Employee’s terminationas a Service Provider, such accelerated Performance Shares will not be payableuntil and unless the Employee has a “separation from service” within themeaning of Section 409A.  Further,and notwithstanding anything in the Plan or this Agreement to the contrary, ifany such accelerated Performance Shares would otherwise become payable upon a “separationfrom service” within the meaning of Section 409A, and if (x) theEmployee is a “specified employee” within the meaning of Section 409A atthe time of such “separation from service” within the meaning of Section 409A(other than due to the Employee’s death) and (y) the payment of all or aportion of such accelerated Performance Shares would result in the impositionof additional tax under Section 409A if paid to the Employee on or withinthe six (6) month period following the Employee’s “separation from service”within the meaning of Section 409A, then the payment of the portion ofsuch accelerated Performance Shares that would result in the additional taximposition will not be made until the date six (6) months and one (1) dayfollowing the date of the Employee’s “separation from service” within themeaning of Section 409A, unless the Employee dies following his or hertermination as a Service Provider, in which case the Performance Shares will bepaid in Shares to the Employee’s estate as soon as practicable following his orher death (and in all cases within ninety (90) days of Employee’s death).  It is the intent of this Agreement to complywith the requirements of Section 409A so that none of the PerformanceShares provided under this Agreement or Shares issuable thereunder will besubject to the additional tax imposed under Section 409A, and anyambiguities herein will be interpreted to so comply.

 

9.             No Effect onEmployment.  TheEmployee’s employment with the Company and its Subsidiaries is on an at willbasis only.  Accordingly, the terms ofthe Employee’s employment with the Company and its Subsidiaries will bedetermined from time to time by the Company or the Subsidiary employing theEmployee (as the case may be), and the Company or the Subsidiary will have theright, which is hereby expressly reserved, to terminate or change the terms ofthe employment of the Employee at any time for any reason whatsoever, with orwithout good cause or notice.

 

10.           Address forNotices.  Any notice to be given to theCompany under the terms of this Agreement will be addressed to the Company at 4991 Corporate Drive, Huntsville, AL 35805,****Attn: Stock Administration,or at such other address as the Company may hereafter designate in writing orelectronically.

 

4

----

 

11.           Changes in Performance Shares. In the event that as a result of a stock or extraordinary cash dividend,stock split, distribution, reclassification, recapitalization, combination ofShares or the adjustment in capital stock of the Company or otherwise, or as aresult of a merger, consolidation, spin-off or other corporate transaction orevent, the Performance Shares will be increased, reduced or otherwise affected,and by virtue of any such event the Employee will in his or her capacity asowner of unvested Performance Shares which have been awarded to him or her (the“Prior Performance Shares”) be entitled to new or additional or differentshares of stock, cash or other securities or property (other than rights orwarrants to purchase securities); such new or additional or different shares,cash or securities or property will thereupon be considered to be unvestedPerformance Shares and will be subject to all of the conditions andrestrictions that were applicable to the Prior Performance Shares pursuant tothis Agreement and the Plan.  If theEmployee receives rights or warrants with respect to any Prior PerformanceShares, such rights or warrants may be held or exercised by the Employee, providedthat until such exercise any such rights or warrants and after such exerciseany shares or other securities acquired by the exercise of such rights orwarrants will be considered to be unvested Performance Shares and will besubject to all of the conditions and restrictions which were applicable to thePrior Performance Shares pursuant to the Plan and this Agreement.  The Administrator in its absolute discretionat any time may accelerate the vesting of all or any portion of such new oradditional shares of stock, cash or securities, rights or warrants to purchasesecurities or shares or other securities acquired by the exercise of suchrights or warrants; provided, however, that the payment of such accelerated newor additional awards shall be made in accordance with the timing of payment rules underparagraph 3(c)(i).

 

12.           Grant is NotTransferable.  Except tothe limited extent provided in paragraph 5, this grant and the rights andprivileges conferred hereby will not be transferred, assigned, pledged orhypothecated in any way (whether by operation of law or otherwise) and will notbe subject to sale under execution, attachment or similar process.  Upon any attempt to transfer, assign, pledge,hypothecate or otherwise dispose of this grant, or any right or privilegeconferred hereby, or upon any attempted sale under any execution, attachment orsimilar process, this grant and the rights and privileges conferred herebyimmediately will become null and void.

 

13.           BindingAgreement.  Subject tothe limitation on the transferability of this grant contained herein, thisAgreement will be binding upon and inure to the benefit of the heirs, legatees,legal representatives, successors and assigns of the parties hereto.

 

14.           Restrictions on Sale of Securities. The Shares issued as payment for vested Performance Shares under thisAgreement will be registered under U.S. federal securities laws and will befreely tradable upon receipt. However, the Employee’s subsequent sale of theShares may be subject to any market blackout-period that may be imposed by theCompany and must comply with the Company’s insider trading policies, and anyother applicable securities laws.

 

15.           AdditionalConditions to Issuance of Stock.  If at any time the Company will determine, inits discretion, that the listing, registration or qualification of the Sharesupon any securities exchange or under any state or federal law, or the consentor approval of any governmental regulatory authority is necessary or desirableas a condition to the issuance of Shares to the Employee (or his or herestate), such issuance will not occur unless and until such listing,registration, qualification, consent or approval will have been effected orobtained free of any conditions not acceptable to the Company.  The Company will make all reasonable effortsto meet the requirements of any such state or federal law or securitiesexchange and to obtain any such consent or approval of any such governmentalauthority.

 

5

----

 

16.           Plan Governs.  This Agreement and the Notice of Grant aresubject to all terms and provisions of the Plan.  In the event of a conflict between one ormore provisions of this Agreement or the Notice of Grant and one or moreprovisions of the Plan, the provisions of the Plan will govern.

 

17.           AdministratorAuthority.  TheAdministrator will have the power to interpret the Plan and this Agreement andto adopt such rules for the administration, interpretation and applicationof the Plan as are consistent therewith and to interpret or revoke any such rules (including,but not limited to, the determination of whether or not any Performance Shareshave vested).  All actions taken and allinterpretations and determinations made by the Administrator in good faith willbe final and binding upon Employee, the Company and all other interestedpersons.  No member of the Administratorwill be personally liable for any action, determination or interpretation madein good faith with respect to the Plan or this Agreement.

 

18.           Captions.  Captionsprovided herein are for convenience only and are not to serve as a basis forinterpretation and construction of this Agreement.

 

19.           Agreement Severable.  In the eventthat any provision of this Agreement becomes or is declared by a court ofcompetent jurisdiction to be illegal, unenforceable or void, this Agreementwill continue in full force and effect.

 

20.           Modifications to the Agreement. This Agreement constitutes the entire understanding of the parties onthe subjects covered.  The Employeeexpressly warrants that he or she is not accepting this Agreement in relianceon any promises, representations, or inducements other than those containedherein.  Modifications to this Agreementor the Plan can be made only in an express written contract executed by a dulyauthorized officer of the Company. Notwithstanding anything to the contrary in the Plan or this Agreement,the Company may amend this Agreement as necessary to comply with Section 409Aor to otherwise avoid imposition of any additional tax or income recognitionunder Section 409A in connection to this Award of Performance Shares.

 

21.           Amendment, Suspension or Termination ofthe Plan.  By accepting this Award, the Employeeexpressly warrants that he or she has received an Award of Performance Sharesunder the Plan, and has received, read and understood a description of thePlan.  The Employee understands that thePlan is discretionary in nature and may be amended, suspended or terminated bythe Company at any time.

 

22.           Governing Law.  ThisAgreement shall be governed by the laws of the State of Alabama without givingeffect to the conflict of law principles thereof.  For purposes of litigating any dispute thatarises under this Award of Performance Shares or this Agreement, the partieshereby submit to and consent to the jurisdiction of the State of Alabama, andagree that such litigation shall be conducted in the courts of Madison County,Alabama, or the federal courts for the United States for the Northern Districtof Alabama, and no other courts, where this Award of Performance Shares is madeand/or to be performed.

 

6

----

 

**AVOCENT CORPORATION**

 

**2008INDUCEMENT EQUITY INCENTIVE PLAN**

 

**NOTICE OFGRANT OF RESTRICTED STOCK UNITS**

 

Unlessotherwise defined herein, the terms defined in the Plan shall have the samedefined meanings in this Notice of Grant of Restricted Stock Units.

 

Youhave been granted the number of Restricted Stock Units set forth on the Noticeof Grant of Award and Award Agreement (the “Cover Page”) to which this Noticeof Grant of Restricted Stock Units is attached. Each such Unit is equivalent to one Share of Common Stock of the Companyfor purposes of determining the number of Shares subject to this Award.  None of the Restricted Stock Units will beissued (nor will you have the rights of a stockholder with respect to theunderlying shares) until the vesting conditions described below aresatisfied.  Additional terms of thisgrant are as follows:

 

**The Vesting Schedule for your Award is set forth on the Cover Page, and[INSERT VESTING SCHEDULE], provided you are employed as a Service Provider bythe Company or a Parent or Subsidiary of the Company on each such date.  [*For the Company’s SeniorOfficers: *Notwithstanding theforegoing, all Restricted Stock Units awarded to you shall be deemed andtreated as fully earned and the vesting of all such Restricted Stock Unitsshall be deemed and treated as fully accelerated on the same terms andconditions that the vesting of any equity awards granted to you is (or isrequired to be) accelerated under the terms of any agreement (including theEmployment and Noncompetition Agreement between you and the Company or any ofits Subsidiaries or any other agreement between you and the Company or any ofits Subsidiaries).]**

 

You acknowledge and agreethat this agreement and the vesting schedule set forth herein does notconstitute an express or implied promise of continued engagement as a ServiceProvider for the vesting period, for any period, or at all, and shall notinterfere with your right or the Company’s right to terminate your relationshipas a Service Provider at any time, with or without cause.

 

You hereby agree toaccept as binding, conclusive and final all decisions or interpretations of theAdministrator upon any questions relating to the Plan and this Award.

 

Byyour signature and the signature of the Company’s representative on the CoverPage, you and the Company agree that the Cover Page, this Notice of Grant ofRestricted Stock Units, the form of Restricted Stock Unit Agreement attached asExhibit A hereto, and the 2008 Inducement Equity Incentive Plan constitute your entire agreement withrespect to this Award and may not be modified adversely to your interest exceptby means of a writing signed by the Company and you.

 

1

----

 

EXHIBIT A

 

**AVOCENT CORPORATION**

 

**2008INDUCEMENT EQUITY INCENTIVE PLAN**

 

**RESTRICTEDSTOCK UNIT AGREEMENT**

 

1.             Grant.  The Company hereby grants to the Employee anaward of Restricted Stock Units (“RSUs”),as set forth in the Notice of Grant of Restricted Stock Units and subject tothe terms and conditions in this Agreement and the Company’s 2008 InducementEquity Incentive Plan (the “Plan”). Unless otherwise defined herein, the terms defined in the Plan shallhave the same defined meanings in this Restricted Stock Unit Agreement.

 

2.             Company’s Obligation.  Each RSU represents the right to receive aShare on the vesting date (or at such later time indicated in thisAgreement).  Unless and until the RSUsvest in the manner set forth in paragraph 3 or Section 15 of the Plan, theEmployee will have no right to receive Shares under such RSUs.  Prior to actual distribution of Sharespursuant to any vested RSUs, such RSUs will represent an unsecured obligationof the Company, payable (if at all) only from the general assets of theCompany.

 

3.             Vesting Schedule and Issuanceof Shares.

 

(a)           Subject to paragraphs 4 and11, and Section 15 of the Plan, the RSUs awarded by this Agreement willvest as to the number of RSUs, and on the dates shown, on the Notice of Grant(each a “Vesting Date”), [*For the Company’s SeniorOfficers: *In addition, theRSUs awarded under this Agreement be deemed and treated as fully accelerated tothe same extent and on the same terms and conditions that the vesting of anyequity awards granted to the Employee is (or is required to be) acceleratedunder the terms of any agreement (including the Employment and NoncompetitionAgreement between the Employee and the Company or any of its Subsidiaries orany other agreement or amendment between the Employee and the Company or any ofits Subsidiaries,] but only if the Employee will have been continuously aService Provider from the date the RSUs awarded by this Agreement were granteduntil the date such vesting occurs.  Ifthe Employee is not a Service Provider on such date(s), the Award shallterminate, as set forth in paragraph 4.

 

(b)           As soon as practical upon orfollowing each Vesting Date (but, except as provided in this Agreement, in noevent later than the later of (i) the end of the calendar year thatincludes the applicable Vesting Date and (ii) two and one-half (21⁄2) monthsfollowing the applicable Vesting Date, subject to any six (6) month delayrequired by paragraph 8), one Share shall be issued for each RSU that vests onsuch Vesting Date, subject to the terms and provisions of the Plan and thisAgreement.

 

(c)           (i)   If theAdministrator, in its discretion, accelerates the vesting of the balance, orsome lesser portion of the balance, of the Award, the payment of suchaccelerated portion of the Award shall be made as soon as practicable after thenew vesting date, but, except as provided in this Agreement, in no event laterthan two and one-half (21⁄2) months following the end of the Company’s taxableyear in which the applicable Vesting Date occurs; provided, however, if theAward is “deferred compensation” within the meaning of Section 409A, thepayment of such accelerated portion of the Award nevertheless shall be made atthe same time or times as if such Award had vested in accordance with thevesting schedule set forth in paragraph 3(a), including any necessaryapplication of 

 

2

----

 

paragraph 8(whether or not the Employee remains employed by the Company or a Parent orSubsidiary of the Company as of such date(s)), unless an earlier payment date,in the judgment of the Administrator, would not cause the Employee to incur anadditional taxunder Section 409A, in which case, payment of such accelerated Award shallbe made within two and one-half (21⁄2) months following the earliest permissiblepayment date that would not cause the Employee to incur an additional tax underSection 409A, subject to paragraph 8 with respect to specifiedemployees.  Notwithstanding theforegoing, any delay in payment pursuant to this paragraph 3(c) will cease uponthe Employee’s death and such payment will be made as soon as practicable afterthe date of Employee’s death. For purposes of this Agreement, “Section 409A”means Section 409A of the Internal Revenue Code of 1986, as amended, andany proposed, temporary or final Treasury Regulations and Internal RevenueService guidance thereunder, as each may be amended from time to time.

 

(ii)   Ifthe vesting of all or a portion of this Award accelerates pursuant to (a) Section 15(c) ofthe Plan in the event of a Change of Control that is not a “change in control”within the meaning of Section 409A, or (b) pursuant to any other planor agreement that provides for acceleration in the event of a Change of Controlthat is not a “change in control” within the meaning of Section 409A, thenthe payment of such accelerated portion of the Award (including any new oradditional Awards existing as a result of paragraph 11 of this Agreement) willbe made in accordance with the timing of payment rules that apply todiscretionary accelerations under paragraph 3(c)(i).  If the vesting of all or a portion of thisAward accelerates in the event of a Change of Control that is a “change incontrol” within the meaning of Section 409A, then the payment of suchaccelerated portion of the Award (including any new or additional Awardsexisting as a result of paragraph 11 of this Agreement) will be made within twoand one-half (21⁄2) months of the Change of Control event.

 

(d)           No fractional Shares shallbe issued under this Agreement.

 

4.             Forfeiture upon Terminationas Service Provider.  Except asprovided in paragraph 3, if the Employee terminates service as a ServiceProvider for any or no reason prior to vesting, the unvested RSUs awarded bythis Agreement will thereupon be forfeited and automatically transferred to andreacquired by the Company at no cost to the Company and the Employee’s right toacquire any Shares hereunder will immediately terminate.

 

5.             Payments after Death.  Any distribution or delivery to be made tothe Employee under this Agreement will, if the Employee is then deceased, bemade to the administrator or executor of the Employee’s estate.  Any such administrator or executor mustfurnish the Company with (a) written notice of his or her status astransferee, and (b) evidence satisfactory to the Company to establish thevalidity of the transfer and compliance with any laws or regulations pertainingto said transfer.

 

6.             Withholding ofTaxes.  The Company (or the employingParent or Subsidiary) will withhold from the number of Shares otherwiseissuable under this Award a number of Shares that have an aggregative marketvalue sufficient to pay the minimum statutorily required federal, state andlocal tax withholding obligations, unless the Company, in its sole discretion,requires the Employee to make alternate arrangements satisfactory to theCompany for such withholdings in advance of the arising of any withholdingobligations.  Shares will be valued attheir Fair Market Value when the taxable event occurs.  The number of Shares withheld pursuant tothis paragraph 6 will be rounded up to the nearest whole Share, with no refundprovided for any value of the Shares withheld in excess of the tax obligationas a result of such rounding, all pursuant to such procedures as theAdministrator may specify from time to time.

 

3

----

 

Notwithstandingany contrary provision of this Agreement, no Shares will be issued unless anduntil income, employment and other taxes which the Company determines must bewithheld or collected with respect to such Shares have been withheld orcollected.  In addition and to themaximum extent permitted by law, the Company (or the employing Parent orSubsidiary) has the right to retain without notice from salary or other amountspayable to the Employee, cash having a sufficient value to satisfy any taxwithholding obligations that the Company determines cannot be satisfied throughthe withholding of otherwise deliverable Shares.  All income and other taxes related to theRSUs and any Shares delivered in payment thereof are the sole responsibility ofthe Employee.

 

7.             Rights asStockholder.  Neither theEmployee nor any person claiming under or through the Employee will have any ofthe rights or privileges of a stockholder of the Company in respect of anyShares deliverable hereunder unless and until certificates representing suchShares will have been issued, recorded on the records of the Company or itstransfer agents or registrars, and delivered to the Employee or Employee’sbroker.

 

8.             Code Section 409A.  Notwithstanding anything in the Plan or thisAgreement to the contrary, if the vesting of the balance, or some lesserportion of the balance, of the RSUs is accelerated in connection with theEmployee’s termination as a Service Provider, such accelerated RSUs will not bepayable until and unless the Employee has a “separation from service” withinthe meaning of Section 409A. Further, and notwithstanding anything in the Plan or this Agreement tothe contrary, if any such accelerated RSUs would otherwise become payable upona “separation from service” within the meaning of Section 409A, and if (x) theEmployee is a “specified employee” within the meaning of Section 409A atthe time of such “separation from service” within the meaning of Section 409A(other than due to the Employee’s death) and (y) the payment of all or aportion of such accelerated RSUs would result in the imposition of additionaltax under Section 409A if paid to the Employee on or within the six (6) monthperiod following the Employee’s “separation from service” within the meaning ofSection 409A, then the payment of the portion of such accelerated RSUsthat would result in the additional tax imposition will not be made until thedate six (6) months and one (1) day following the date of theEmployee’s “separation from service” within the meaning of Section 409A,unless the Employee dies following his or her termination as a ServiceProvider, in which case the RSUs will be paid in Shares to the Employee’sestate as soon as practicable following his or her death (and in all caseswithin ninety (90) days of Employee’s death). It is the intent of this Agreement to comply with the requirements of Section 409Aso that none of the RSUs provided under this Agreement or Shares issuablethereunder will be subject to the additional tax imposed under Section 409A,and any ambiguities herein will be interpreted to so comply.

 

9.             No Effect onEmployment.  TheEmployee’s employment with the Company and its Subsidiaries is on an at-will basisonly.  Accordingly, the terms of theEmployee’s employment with the Company and its Subsidiaries will be determinedfrom time to time by the Company or the Subsidiary employing the Employee (asthe case may be), and the Company or the Subsidiary will have the right, whichis hereby expressly reserved, to terminate or change the terms of theemployment of the Employee at any time for any reason whatsoever, with orwithout good cause or notice.

 

10.           Address forNotices.  Any notice to be given to theCompany under the terms of this Agreement will be addressed to the Company at 4991 Corporate Drive, Huntsville, AL 35805, Attn:Stock Administration, or at such other address as the Company may hereafterdesignate in writing or electronically.

 

11.           Changes in RSUs.  In the event that as a result of a stock orextraordinary cash dividend, stock split, distribution, reclassification,recapitalization, combination of Shares or the 

 

4

----

 

adjustmentin capital stock of the Company or otherwise, or as a result of a merger,consolidation, spin-off or other corporate transaction or event, the RSUs willbe increased, reduced or otherwise affected, and by virtue of any such eventthe Employee will in his or her capacity as owner of unvested RSUs which havebeen awarded to him or her (the “Prior RSUs”) be entitled to new or additionalor different shares of stock, cash or other securities or property (other thanrights or warrants to purchase securities); such new or additional or differentshares, cash or securities or property will thereupon be considered to beunvested RSUs and will be subject to all of the conditions and restrictionsthat were applicable to the Prior RSUs pursuant to this Agreement and the Plan.  If the Employee receives rights or warrantswith respect to any Prior RSUs, such rights or warrants may be held orexercised by the Employee, provided that until such exercise any such rights orwarrants and after such exercise any shares or other securities acquired by theexercise of such rights or warrants will be considered to be unvested RSUs andwill be subject to all of the conditions and restrictions which were applicableto the Prior RSUs pursuant to the Plan and this Agreement.  The Administrator in its absolute discretionat any time may accelerate the vesting of all or any portion of such new oradditional shares of stock, cash or securities, rights or warrants to purchasesecurities or shares or other securities acquired by the exercise of suchrights or warrants; provided, however, that the payment of such accelerated newor additional awards shall be made in accordance with the timing of payment rules underparagraph 3(c)(i).

 

12.           Grant is NotTransferable.  Except tothe limited extent provided in paragraph 5, this grant and the rights andprivileges conferred hereby will not be transferred, assigned, pledged orhypothecated in any way (whether by operation of law or otherwise) and will notbe subject to sale under execution, attachment or similar process.  Upon any attempt to transfer, assign, pledge,hypothecate or otherwise dispose of this grant, or any right or privilegeconferred hereby, or upon any attempted sale under any execution, attachment orsimilar process, this grant and the rights and privileges conferred herebyimmediately will become null and void.

 

13.           BindingAgreement.  Subject tothe limitation on the transferability of this grant contained herein, thisAgreement will be binding upon and inure to the benefit of the heirs, legatees,legal representatives, successors and assigns of the parties hereto.

 

14.           Restrictions on Sale of Securities.  The Shares issued as payment for vested RSUsunder this Agreement will be registered under U.S. federal securities laws andwill be freely tradable upon receipt. However, the Employee’s subsequent saleof the Shares may be subject to any market blackout-period that may be imposedby the Company and must comply with the Company’s insider trading policies, andany other applicable securities laws.

 

15.           Additional Conditions to Issuance of Stock.  If at any time the Company will determine, inits discretion, that the listing, registration or qualification of the Sharesupon any securities exchange or under any state or federal law, or the consentor approval of any governmental regulatory authority is necessary or desirableas a condition to the issuance of Shares to the Employee (or his or herestate), such issuance will not occur unless and until such listing,registration, qualification, consent or approval will have been effected orobtained free of any conditions not acceptable to the Company.  The Company will make all reasonable effortsto meet the requirements of any such state or federal law or securities exchangeand to obtain any such consent or approval of any such governmental authority.

 

16.           Plan Governs.  This Agreement and the Notice of Grant aresubject to all terms and provisions of the Plan.  In the event of a conflict between one ormore provisions of this Agreement or the Notice of Grant and one or moreprovisions of the Plan, the provisions of the Plan will govern.

 

5

----

 

17.           Administrator Authority.  The Administrator will have the power tointerpret the Plan and this Agreement and to adopt such rules for theadministration, interpretation and application of the Plan as are consistenttherewith and to interpret or revoke any such rules (including, but notlimited to, the determination of whether or not any RSUs have vested).  All actions taken and all interpretations anddeterminations made by the Administrator in good faith will be final andbinding upon Employee, the Company and all other interested persons.  No member of the Administrator will be personallyliable for any action, determination or interpretation made in good faith withrespect to the Plan or this Agreement.

 

18.           Stock Ownership Guidelines.  Employee understands and acknowledges thatthis Agreement and the right to receive Shares under this RSU Award is subjectto the terms and conditions of the Avocent Corporation Restricted Stock,Performance Shares, and Stock Ownership General Guidelines as in effect fromtime to time and as construed by the Administrator.

 

19.           Captions.  Captions provided herein are for convenienceonly and are not to serve as a basis for interpretation and construction ofthis Agreement.

 

20.           Agreement Severable.  In the event that any provision of thisAgreement becomes or is declared by a court of competent jurisdiction to beillegal, unenforceable or void, this Agreement will continue in full force andeffect.

 

21.           Modifications to the Agreement.  This Agreement constitutes the entireunderstanding of the parties on the subjects covered.  The Employee expressly warrants that he orshe is not accepting this Agreement in reliance on any promises,representations, or inducements other than those contained herein.  Modifications to this Agreement or the Plancan be made only in an express written contract executed by a duly authorizedofficer of the Company.  Notwithstandinganything to the contrary in the Plan or this Agreement, the Company may amendthis Agreement as necessary to comply with Section 409A or to otherwiseavoid imposition of any additional tax or income recognition under Section 409Ain connection to this Award of RSUs.

 

22.           Amendment, Suspension or Termination of the Plan.  By accepting this Award, the Employeeexpressly warrants that he or she has received an Award of RSUs under the Plan,and has received, read and understood a description of the Plan.  The Employee understands that the Plan isdiscretionary in nature and may be amended, suspended or terminated by theCompany at any time.

 

23.           Governing Law.  This Agreement shall be governed by the lawsof the State of Alabama without giving effect to the conflict of law principlesthereof.  For purposes of litigating anydispute that arises under this Award of RSUs or this Agreement, the partieshereby submit to and consent to the jurisdiction of the State of Alabama, andagree that such litigation shall be conducted in the courts of Madison County,Alabama, or the federal courts for the United States for the Northern Districtof Alabama, and no other courts, where this Award of RSUs is made and/or to beperformed.

 

6

----

 

**AVOCENTCORPORATION**

 

**2008 INDUCEMENT EQUITY INCENTIVE PLAN**

 

**NOTICE OF GRANT OF PERFORMANCE SHARES**

 

Unless otherwise definedherein, the terms defined in the Plan shall have the same defined meanings inthis Notice of Grant.

 

**Name:**

 

You have been granted                   Performance Shares.  Each such Share isequivalent to one Share of Common Stock of the Company for purposes ofdetermining the number of Shares subject to this award.  None of the Performance Shares will be issuedto you (nor will you have the rights of a stockholder with respect to theunderlying shares) until the vesting conditions described below aresatisfied.  Additional terms of thisgrant are as follows:

 

Date of Grant:

 

VestingSchedule:  The PerformanceShare award to you specified above will be earned based on **[INSERT VESTING SCHEDULE]**,provided you are employed as a Service Provider by the Company or a Parent orSubsidiary on each such date.  [*For the Company’s Senior Officers: *Notwithstanding the foregoing, and even if the financial orother performance of the Company for           has not then been determined, all Performance Shares awarded to you shall bedeemed and treated as fully earned at the maximum level and the vesting of allsuch Performance Shares shall be deemed and treated as fully accelerated on thesame terms and conditions that the vesting of any equity awards granted to youis (or is required to be) accelerated under the terms of any agreement(including the Employment and Noncompetition Agreement between you and theCompany or any of its Subsidiaries or any other agreement between you and theCompany or any of its Subsidiaries).]

 

You acknowledge and agree that this agreement and thevesting schedule set forth herein does not constitute an express or implied promiseof continued engagement as a Service Provider for the vesting period, for anyperiod, or at all, and shall not interfere with your right or the Company’sright to terminate your relationship as a Service Provider at any time, with orwithout cause.

 

You hereby agree to accept as binding, conclusive andfinal all decisions or interpretations of the Administrator upon any questionsrelating to the Plan and this Award.

 

By your signature and thesignature of the Company’s representative below, you and the Company agree thatthis Notice of Grant, the form of Performance Share Agreement attached as Exhibit Ahereto and the 2008 Inducement Equity Incentive Plan constitute your entire agreement withrespect to this Award and may not be modified adversely to your interest exceptby means of a writing signed by the Company and you.

 
| GRANTEE:   |   | AVOCENT CORPORATION |
|------------|--------|---------------------|
|       |   |                |
|       |   | By:                 |   |
| Signature  |   | Its:                |   |
|       |   |                |
| Print Name |   |                |

 

1

----

 

EXHIBIT A

 

**AVOCENTCORPORATION**

 

**2008 INDUCEMENT EQUITY INCENTIVE PLAN**

 

**PERFORMANCE SHARE AGREEMENT**

 

1.             Grant.  The Company hereby grants to the Employee anaward of Performance Shares, asset forth in the Notice of Grant of Performance Shares and subject to the termsand conditions in this Agreement and the Company’s 2008 Inducement EquityIncentive Plan (the “Plan”).  Unlessotherwise defined herein, the terms defined in the Plan shall have the samedefined meanings in this Performance Share Agreement.

 

2.             Company’s Obligation.  Each Performance Share represents the rightto receive a Share on the vesting date (or at such later time indicated in thisAgreement).  Unless and until thePerformance Shares vest in the manner set forth in paragraph 3 or Section 15of the Plan, the Employee will have no right to receive Shares under suchPerformance Share.  Prior to actualdistribution of Shares pursuant to any vested Performance Shares, suchPerformance Shares will represent an unsecured obligation of the Company,payable (if at all) only from the general assets of the Company.

 

3.             Vesting Schedule andIssuance of Shares.

 

(a)           Subject to paragraphs 4 and11, and Section 15 of the Plan, the Performance Shares awarded by thisAgreement will vest as to the number of Shares, and on the dates shown, on theNotice of Grant (each a “Vesting Date”), [*For the Company’s SeniorOfficers: *In addition,and even if the financial or other performance of the Company for           has not then been determined, the Performance Shares awarded under thisAgreement will be deemed and treated as fully earned at the maximum level andthe vesting of all such Performance Shares shall be deemed and treated as fully accelerated onthe same terms and conditions that the vesting of any equity awards granted toyou is (or is required to be) accelerated under the terms of any agreement(including the Employment and Noncompetition Agreement between you and theCompany or any of its Subsidiaries or any other agreement between you and theCompany or any of its Subsidiaries),]  but only if the Employee will have beencontinuously a Service Provider from the date the Performance Shares awarded bythis Agreement were granted until the date such vesting occurs.  If the Employee is not a Service Provider onsuch date(s), the Award shall terminate, as set forth in paragraph 4.

 

(b)           As soon as practical upon orfollowing each VestingDate (but, except as provided in this Agreement, in no event later than thelater of (i) the end of the calendar year that includes the applicableVesting Date or (ii) two and one-half (21⁄2) months following the applicableVesting Date, subject to any six (6) month delay required by paragraph 8),one Share shall be issued for each Performance Share that vests on such VestingDate, subject to the terms and provisions of the Plan and this Agreement.

 

(c)           (i)   If the Administrator, in itsdiscretion, accelerates the vesting of the balance, or some lesser portion ofthe balance, of the Award, the payment of such accelerated portion of the Awardshall be made as soon as practicable after the new vesting date, but, except asprovided in this Agreement, in no event later than two and one-half (21⁄2) monthsfollowing the end of the Company’s taxable year in which the applicable VestingDate occurs; provided, however, if the Award is “deferred

 

2

----

 

compensation” within themeaning of Section 409A, the payment of such accelerated portion of theAward nevertheless shall be made at the same time or times as if such Award hadvested in accordance with the vesting schedule set forth in paragraph 3(a),including any necessary application of paragraph 8 (whether or not the Employeeremains employed by the Company or a Parent or Subsidiary of the Company as ofsuch date(s)), unless an earlier payment date, in the judgment of theAdministrator, would not cause the Employee to incur anadditional tax under Section 409A, in whichcase, payment of such accelerated Award shall be made within two and one-half(21⁄2) months following the earliest permissible payment date that would notcause the Employee to incur an additional tax under Section 409A, subjectto paragraph 8 with respect to specified employees.  Notwithstanding the foregoing, any delay inpayment pursuant to this paragraph 3(c) will cease upon the Employee’sdeath and such payment will be made as soon as practicable after the date ofEmployee’s death.  For purposes of thisAgreement, “Section 409A” means Section 409A of the Internal RevenueCode of 1986, as amended, and any proposed, temporary or final TreasuryRegulations and Internal Revenue Service guidance thereunder, as each may beamended from time to time.

 

(ii)   Ifthe vesting of all or a portion of this Award accelerates pursuant to (a) Section 15(c) ofthe Plan in the event of a Change of Control that is not a “change in control”within the meaning of Section 409A, or (b) pursuant to any other planor agreement that provides for acceleration in the event of a Change of Controlthat is not a “change in control” within the meaning of Section 409A, thenthe payment of such accelerated portion of the Award (including any new oradditional Awards existing as a result of paragraph 11 of this Agreement) willbe made in accordance with the timing of payment rules that apply todiscretionary accelerations under paragraph 3(c)(i).  If the vesting of all or a portion of thisAward accelerates in the event of a Change of Control that is a “change incontrol” within the meaning of Section 409A, then the payment of suchaccelerated portion of the Award (including any new or additional Awardsexisting as a result of paragraph 11 of this Agreement) will be made within twoand one-half (21⁄2) months of the Change of Control event.

 

(d)           No fractional Shares shall be issued under thisAgreement.

 

4.             Forfeiture upon Terminationas Service Provider.  Except asset forth in paragraph 3, if the Employee terminates service as a ServiceProvider for any or no reason prior to vesting, the unearned or unvestedPerformance Shares awarded by this Agreement will thereupon be forfeited andautomatically transferred to and reacquired by the Company at no cost to theCompany and the Employee’s right to acquire any Shares hereunder willimmediately terminate.

 

5.             Payments after Death.  Any distribution or delivery to be made tothe Employee under this Agreement will, if the Employee is then deceased, bemade to the administrator or executor of the Employee’s estate.  Any such administrator or executor mustfurnish the Company with (a)  written notice of his or her status astransferee, and (b) evidence satisfactory to the Company to establish thevalidity of the transfer and compliance with any laws or regulations pertainingto said transfer.

 

6.             Withholding of Taxes.  The Company(or the employing Parent or Subsidiary) will withhold from the number of Sharesotherwise issuable under this Award a number of Shares that have an aggregativemarket value sufficient to pay the minimum statutorily required federal, stateand local tax withholding obligations, unless the Company, in its sole discretion,requires the Employee to make alternate arrangements satisfactory to theCompany for such withholdings in advance of the arising of any withholdingobligations.  Shares will be valued attheir Fair Market Value when the taxable event occurs.  The number of Shares withheld pursuant tothis paragraph 6 will be rounded up to the nearest whole Share, with no refundprovided for any value of the Shares withheld in excess of the tax obligationas a result of such rounding, all pursuant to such procedures as theAdministrator may

 

3

----

 

specify from time totime.

 

Notwithstanding any contrary provision of thisAgreement, no Shares will be issued unless and until income, employment andother taxes which the Company determines must be withheld or collected withrespect to such Shares have been withheld or collected.  In addition and to the maximum extentpermitted by law, the Company (or the employing Parent or Subsidiary) has theright to retain without notice from salary or other amounts payable to theEmployee, cash having a sufficient value to satisfy any tax withholdingobligations that the Company determines cannot be satisfied through thewithholding of otherwise deliverable Shares. All income and other taxes related to the Performance Shares and anyShares delivered in payment thereof are the sole responsibility of theEmployee.

 

7.             Rights as Stockholder.  Neither the Employee nor any person claimingunder or through the Employee will have any of the rights or privileges of astockholder of the Company in respect of any Shares deliverable hereunderunless and until certificates representing such Shares will have been issued,recorded on the records of the Company or its transfer agents or registrars,and delivered to the Employee or Employee’s broker.

 

8.             Code Section 409A. Notwithstanding anything in the Plan or this Agreement to the contrary,if the vesting of the balance, or some lesser portion of the balance, of thePerformance Shares is accelerated in connection with the Employee’s terminationas a Service Provider, such accelerated Performance Shares will not be payableuntil and unless the Employee has a “separation from service” within themeaning of Section 409A.  Further,and notwithstanding anything in the Plan or this Agreement to the contrary, ifany such accelerated Performance Shares would otherwise become payable upon a “separationfrom service” within the meaning of Section 409A, and if (x) theEmployee is a “specified employee” within the meaning of Section 409A atthe time of such “separation from service” within the meaning of Section 409A(other than due to the Employee’s death) and (y) the payment of all or aportion of such accelerated Performance Shares would result in the impositionof additional tax under Section 409A if paid to the Employee on or withinthe six (6) month period following the Employee’s “separation from service”within the meaning of Section 409A, then the payment of the portion ofsuch accelerated Performance Shares that would result in the additional taximposition will not be made until the date six (6) months and one (1) dayfollowing the date of the Employee’s “separation from service” within themeaning of Section 409A, unless the Employee dies following his or hertermination as a Service Provider, in which case the Performance Shares will bepaid in Shares to the Employee’s estate as soon as practicable following his orher death (and in all cases within ninety (90) days of Employee’s death).  It is the intent of this Agreement to complywith the requirements of Section 409A so that none of the PerformanceShares provided under this Agreement or Shares issuable thereunder will besubject to the additional tax imposed under Section 409A, and anyambiguities herein will be interpreted to so comply.

 

9.             No Effect on Employment.  The Employee’s employment with the Companyand its Subsidiaries is on an at-will basis only.  Accordingly, the terms of the Employee’semployment with the Company and its Subsidiaries will be determined from timeto time by the Company or the Subsidiary employing the Employee (as the casemay be), and the Company or the Subsidiary will have the right, which is herebyexpressly reserved, to terminate or change the terms of the employment of the Employeeat any time for any reason whatsoever, with or without good cause or notice.

 

10.           Address for Notices.  Any notice to be given to the Company underthe terms of this Agreement will be addressed to the Company at 4991 Corporate Drive, Huntsville, AL 35805,****Attn: Stock Administration,or at such other address as the Company may hereafter designate in writing or

 

4

----

 

electronically.

 

11.           Changes in Performance Shares. In the event that as a result of a stock or extraordinary cash dividend,stock split, distribution, reclassification, recapitalization, combination ofShares or the adjustment in capital stock of the Company or otherwise, or as aresult of a merger, consolidation, spin-off or other corporate transaction orevent, the Performance Shares will be increased, reduced or otherwise affected,and by virtue of any such event the Employee will in his or her capacity asowner of unvested Performance Shares which have been awarded to him or her (the“Prior Performance Shares”) be entitled to new or additional or differentshares of stock, cash or other securities or property (other than rights orwarrants to purchase securities); such new or additional or different shares,cash or securities or property will thereupon be considered to be unvestedPerformance Shares and will be subject to all of the conditions andrestrictions that were applicable to the Prior Performance Shares pursuant tothis Agreement and the Plan.  If theEmployee receives rights or warrants with respect to any Prior PerformanceShares, such rights or warrants may be held or exercised by the Employee,provided that until such exercise any such rights or warrants and after suchexercise any shares or other securities acquired by the exercise of such rightsor warrants will be considered to be unvested Performance Shares and will besubject to all of the conditions and restrictions which were applicable to thePrior Performance Shares pursuant to the Plan and this Agreement.  The Administrator in its absolute discretionat any time may accelerate the vesting of all or any portion of such new oradditional shares of stock, cash or securities, rights or warrants to purchasesecurities or shares or other securities acquired by the exercise of suchrights or warrants; provided, however, that the payment of such accelerated newor additional awards shall be made in accordance with the timing of payment rules underparagraph 3(c)(i).

 

12.           Grant is Not Transferable.  Except to the limited extent provided inparagraph 5, this grant and the rights and privileges conferred herebywill not be transferred, assigned, pledged or hypothecated in any way (whetherby operation of law or otherwise) and will not be subject to sale underexecution, attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwisedispose of this grant, or any right or privilege conferred hereby, or upon anyattempted sale under any execution, attachment or similar process, this grantand the rights and privileges conferred hereby immediately will become null andvoid.

 

13.           Binding Agreement.  Subject to the limitation on thetransferability of this grant contained herein, this Agreement will be bindingupon and inure to the benefit of the heirs, legatees, legal representatives,successors and assigns of the parties hereto.

 

14.           Restrictions on Sale of Securities. The Shares issued as payment for vested Performance Shares under thisAgreement will be registered under U.S. federal securities laws and will befreely tradable upon receipt. However, the Employee’s subsequent sale of theShares may be subject to any market blackout-period that may be imposed by theCompany and must comply with the Company’s insider trading policies, and anyother applicable securities laws.

 

15.           Additional Conditions toIssuance of Stock.  If at anytime the Company will determine, in its discretion, that the listing,registration or qualification of the Shares upon any securities exchange orunder any state or federal law, or the consent or approval of any governmentalregulatory authority is necessary or desirable as a condition to the issuanceof Shares to the Employee (or his or her estate), such issuance will not occurunless and until such listing, registration, qualification, consent or approvalwill have been effected or obtained free of any conditions not acceptable tothe Company.  The Company will make allreasonable efforts to meet the requirements of any such state or federal law orsecurities exchange and to obtain any such consent or approval of any suchgovernmental

 

5

----

 

authority.

 

16.           Plan Governs.  This Agreement and the Notice of Grant aresubject to all terms and provisions of the Plan.  In the event of a conflict between one ormore provisions of this Agreement or the Notice of Grant and one or moreprovisions of the Plan, the provisions of the Plan will govern.

 

17.           Administrator Authority.  The Administrator will have the power tointerpret the Plan and this Agreement and to adopt such rules for theadministration, interpretation and application of the Plan as are consistenttherewith and to interpret or revoke any such rules (including, but notlimited to, the determination of whether or not any Performance Shares havevested).  All actions taken and allinterpretations and determinations made by the Administrator in good faith willbe final and binding upon Employee, the Company and all other interestedpersons.  No member of the Administratorwill be personally liable for any action, determination or interpretation madein good faith with respect to the Plan or this Agreement.

 

18.           Captions.  Captionsprovided herein are for convenience only and are not to serve as a basis forinterpretation and construction of this Agreement.

 

19.           Agreement Severable.  In the eventthat any provision of this Agreement becomes or is declared by a court ofcompetent jurisdiction to be illegal, unenforceable or void, this Agreementwill continue in full force and effect.

 

20.           Modifications to the Agreement. This Agreement constitutes the entire understanding of the parties onthe subjects covered.  The Employeeexpressly warrants that he or she is not accepting this Agreement in relianceon any promises, representations, or inducements other than those containedherein.  Modifications to this Agreementor the Plan can be made only in an express written contract executed by a dulyauthorized officer of the Company. Notwithstanding anything to the contrary in the Plan or this Agreement,the Company may amend this Agreement as necessary to comply with Section 409Aor to otherwise avoid imposition of any additional tax or income recognitionunder Section 409A in connection to this Award of Performance Shares.

 

21.           Amendment, Suspension or Termination of the Plan. By accepting this Award, the Employee expressly warrants that he or shehas received an Award of Performance Shares under the Plan, and has received,read and understood a description of the Plan. The Employee understands that the Plan is discretionary in nature andmay be amended, suspended or terminated by the Company at any time.

 

22.           Governing Law.  GoverningLaw.  This Agreement shall begoverned by the laws of the State of Alabama without giving effect to the conflictof law principles thereof.  For purposesof litigating any dispute that arises under this Award of Performance Shares orthis Agreement, the parties hereby submit to and consent to the jurisdiction ofthe State of Alabama, and agree that such litigation shall be conducted in thecourts of Madison County, Alabama, or the federal courts for the United Statesfor the Northern District of Alabama, and no other courts, where this Award ofPerformance Shares is made and/or to be performed.

 

6

----